Hofer v. Carson

• Decision Date: 10 January 1922
• Citation: 102 Or. 545,203 P. 323
• Parties: HOFER v. CARSON ET AL.
• Court: Oregon Supreme Court

203 P. 323

102 Or. 545

HOFER v. CARSON ET AL.

Supreme Court of Oregon

January 10, 1922

Department 1.

Appeal from Circuit Court, Marion County; George G. Bingham, Judge.

Suit by E. Hofer against John H. Carson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The plaintiff, a resident and taxpayer of the city of Salem brought these proceedings by the filing of a complaint in which he seeks to enjoin the defendants, the district attorney, sheriff, and county clerk of Marion county, Or chief of police of the city of Salem, and constable of Salem district, from enforcing the provisions of an act of the Legislative Assembly of the state of Oregon set forth in chapter 186 of the General Laws of Oregon 1919. In his complaint the plaintiff alleges that there are now two ordinances in full force and effect in the city of Salem relating to the regulation, control, and licensing of dogs but, as the validity of said ordinances is not brought into question by any allegation of the complaint, no further reference to them is necessary other than to say that these ordinances cover largely the scope of the act under consideration. The plaintiff alleges that he is the owner of a bull terrier, of the approximate value of $50, kept by him within the city of Salem, which is subject to taxation and upon which he pays taxes. The complaint alleges five grounds upon which he claims that said act of the Legislative Assembly under which he alleges the defendants are assuming to act is unconstitutional, and that, unless the defendants are restrained from enforcing the act, the plaintiff will be subjected to prosecution for the violation of its provisions and will suffer irreparable loss. A general demurrer to the complaint was filed upon the ground that the complaint does not state facts sufficient to constitute a cause of suit. The demurrer was sustained, and an order was made dismissing plaintiff's suit. From this order the plaintiff has appealed.

Allan Bynon, of Portland, for appellant.

William H. Trindle, of Salem, for respondents.

Frank S. Grant and L. E. Latourette, of Portland, amicus curiæ.

RAND, J. (after stating the facts as above).

The plaintiff contends that under article 11, § 2, and article 4, § 1a, of the Constitution of the state , the licensing and control of dogs kept in cities and towns are matters of purely local and municipal concern, that the power to legislate thereon resides exclusively in the legal voters of the city or town, and not in the Legislature of the state, and that the act in question (chapter 186 of the General Laws of Oregon 1919) is therefore unconstitutional and void so far as it attempts to authorize the licensing and control of dogs kept in cities and towns.

The enactment of laws providing for the control and regulation of the mode of keeping dogs, imposing the payment of license fees upon the owners and authorizing the summary killing of dogs in violation of law is an exercise of the police power of the state and is within the legitimate sphere of the legislative power. The matter of licensing dogs is of as much concern to the people throughout the state at large as it is to the people in any particular locality or community within the state. The keeping of dogs is not confined to cities and towns, but is coextensive with the boundaries of the state. The necessity of regulating the manner in which dogs shall be kept and controlled is as urgent without as it is within the limits of cities and towns, as their proclivity to do mischief is as pronounced in one instance as the other. It is not, therefore, a matter of local concern, but it is one of equal concern to all of the people throughout the state.

It is the wisdom of the Legislature, and not the judgment of the court, which determines the necessity for legislation upon any particular subject and the manner in which the law shall be enforced. The exercise by the state of its power to license dogs and to provide for their summary disposal when kept in violation of law is a valid exercise of its police power just as much so as it is for the state to legislate for the purpose of preventing the spread of contagious diseases, the use of false weights and measures the adulteration of food, the regulation of railroads and other public utilities, or the doing of anything which injuriously affects the public health and safety or is detrimental to the morals, welfare, and happiness of the people of the state.

Although the state may delegate to a city the right to exercise the police power, we are not able to give our assent to any suggestion that there has been any surrender of any part of the police power of the state to any city, town, or municipality within the state. As to those matters which are local, special, or municipal in character, and which do not concern the people of the state as a whole or affect its welfare, the right of the legal voters of a city or town to legislate thereon, when not in conflict with a general law of the state, is unquestioned. But, whether the matter concerns the state at large or the municipality, city, or town alone the legislative power of the state, when exercised by the Legislature or by the people of the state at large through the initiative and referendum, is paramount and supreme. This is in accordance with the meaning and effect of the decisions of this court in Rose v. Portland, 82 Or. 541, 568, 569, 573, 162 P. 498; Lovejoy v. Portland, 95 Or. 459, 468, et seq., 188 P. 207; Colby v. Medford, 85 Or. 485, 534, 167 P. 487; Hillsboro v. Public Service Commission, 97 Or. 320, 336, 187 P. 617, 192 P. 390; and Tichner v. Portland, 200 P. 466, 468.

No presumption of law can be indulged against the validity of a statute. Every statute is presumed to be constitutional. No court is authorized to set aside a statute unless it clearly and unmistakably appears that the statute does plainly and unquestionably violate some provision of the Constitution.

The plaintiff insists that the act in question (chapter 186, General Laws of Oregon 1919) by its operation deprives a person of his property without due process of law contrary to and in violation of the Fourteenth Amendment to the Constitution of the United States of America. Chapter 186, General Laws of Oregon 1919, in effect provides for the holding of an election in any county, election precinct, or incorporated city in the state upon petition of a certain number of legal voters thereof to determine by vote whether dogs shall be permitted to run at large in such county, precinct, or incorporated city, and if at such election the majority of the votes cast are against permitting dogs to run at large, after 60 days following such election it shall be unlawful for dogs to run at large in such county, city, or precinct, and when any dog is found running at large and away from the premises of the owner thereof, without a muzzle securely fastened thereon, the owner of such dog shall be subject to a fine of $10 for the first offense and $25 for each subsequent offense. It is made the duty of every chief of police, constable, sheriff, or deputy to kill all dogs found running at large without having such muzzle securely fastened thereon, and not in the company and under the control of the owner or keeper. The act also provides that the owner of any dog shall pay a license fee of either $1 or $2 to the county clerk of the county according to the sex of the dog, and upon payment of such license fee the county clerk shall issue a license and deliver a leather collar stamped with the year and number of the license thereon, and any dog not wearing such collar shall be considered an outlaw and shall be killed by the officers designated if found running at large. The act provides that the moneys paid for fines and for licenses when collected shall be paid into the county treasury and be kept for a special fund, and from this fund the costs of prosecution and damage done to domestic live stock by dogs in such county, precinct, or city shall be paid. The act also provides that any owner or keeper of dogs who neglects to apply for or fails to pay the license fee during the month of January in each year shall pay a fine of $10, and that the owner or owners of any sheep, goats, or other domestic animals killed or injured by any dog or dogs may, within 10 days after such killing or injury, present to the board of county commissioners a verified statement and account of the killing or injury of such animals and the amount of damages claimed therefor. The act also provides that upon the presentation of such claim the board shall allow or disallow the same as it may deem proper, and, if allowed, a warrant shall be drawn against the said fund for the amount of the damages allowed.

In support of his contention the plaintiff cites the case of Rose v. Salem, 77 Or. 77, 150 P. 276. That case was largely based upon the assumption that, the statute having declared dogs to be personal property and having made them the subject of larceny, the right of ownership in dogs was thereby placed on the same plane of ownership as other personal property in general, and therefore the summary destruction of a dog without notice to the owner for a violation of a city ordinance would operate to deprive the owner of his property without due process of law within the meaning of the Fourteenth Amendment. The right of ownership in dogs has always been recognized as a right of property in this state. Section 9358, Or. L., as passed by the Legislature in 1860, recognized such right by the use of the words "the owner of any dog." In 1889 (Laws 1889 p. 38), the Legislature amended section 1950, Or. L., by adding to the statute the word "dog," thereby making a dog the subject of larceny in this...